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Malaysia’s draconian National Security Council Act comes into force

Malaysia’s draconian National Security Council (NSC) Act has come into force today (Monday). The legislation empowers a security council, led by the Prime Minister, Najib Razak, to designate security areas in which the authorities will be able to carry out arrests, searches, and seizures without a warrant, and impose curfews.

The country’s opposition coalition, Pakatan Harapan, said the coming into force of the NSC Act had brought Malaysia “to the brink of dictatorship”.

Pakatan Harapan says the Act violates the basic structure of the Malaysian constitution and “recklessly encroaches on the prerogatives and vestigial powers of the Malay Rulers”.

The authoritarian powers accorded to Najib under the NSC Act are too much for any one man to hold, the coalition says. “This will bring ruin upon Malaysia.”

Pakatan Harapan’s presidential council¹ said: “To the detriment of the Malaysian population, our freedom of movement and other fundamental civil liberties are now at the mercy of just one man – Prime Minister Najib Abdul Razak.

Amnesty International said the Act empowered the Malaysian authorities to “trample over human rights and act with impunity”.

Amnesty’s deputy director for Southeast Asia and the Pacific, Josef Benedict, said: “With this new law, the government now has spurned checks and assumed potentially abusive powers.”

The NSC Act was pushed through parliament very rapidly and was gazetted without the assent of the king (the Yang Di-Pertuan Agong), and without taking into consideration any of the changes suggested by Malaysia’s Council of Rulers.

The Bill was passed by the lower house, the Dewan Rakyat, on December 3 and was rubber stamped by the Senate (the Dewan Negara) on December 22.

MPs were allowed minimal time for debate and there was no opportunity for civil society input. Senators voted in favour of the legislation without making any amendments.

Gazetting without the assent of the king is permitted under Article 66(4A) of Malaysia’s federal constitution. If the king has not expressed his agreement to a Bill thirty days after it is passed in parliament, his assent is considered to have been given and the Bill can be gazetted and become law.

Najib (pictured left), who is at the centre of a massive financial scandal, says the new legislation, along with the 2012 Security Offences (Special Measures) Act, or SOSMA, the Prevention of Terrorism Act (POTA), and the Special Measures against Terrorism in Foreign Countries Act, are vital to combat the growing terrorism threat in the region.

“My government will never apologise for placing the safety and security of the Malaysian people first,” he said.

The prime minister’s critics say there was already more than enough legislation in place to deal with any security threat and Najib is doing all he can to stifle dissent.

Najib is accused of siphoning off huge amounts of public money for his own use and has faced repeated calls for his resignation.

The prime minster has denied any wrongdoing, but the justice department in the United States has launched civil lawsuits relating to the government-owned investment fund 1Malaysia Development Berhad (1MDB), which is at the centre of the scandal.

The justice department is seeking the forfeiture and recovery of more than $1 billion in assets which it says are “associated with an international conspiracy to launder funds misappropriated from a Malaysian sovereign wealth fund”.

It states: “According to the complaints, from 2009 through 2015, more than $3.5 billion in funds belonging to 1Malaysia Development Berhad (1MDB) was allegedly misappropriated by high-level officials of 1MDB and their associates.”

‘No accountability’

Under the NSC Act, Malaysia’s security forces will be able to take temporary possession of any land, any building or part of a building, or any movable property within a designated security area, and even destroy “certain unoccupied buildings”.

The director of operations will be able to evacuate people from a security area and resettle them in an area he determines.

Lawyers for Liberty said: “No-one can be held accountable and the NSC, its committees, personnel, and security forces have legal immunity from any criminal and civil proceedings, even to the extent of dispensing with holding an inquest upon the death of a person.”

The president of Malaysia’s National Human Rights Society (HAKAM), Ambiga Sreenevasan (pictured left), says that, under the NSC Act, the security council’s role is merely advisory, and the prime minister is not obliged to take others’ advice.

“Furthermore, the prime minister, without reference to the council, may in his sole discretion extend the declaration ad infinitum.”

If one studies the Bill carefully, it appears to provide checks and balances, Sreenevasan says, “but, on closer scrutiny, we can see they are anything but that”.

The UN Human Rights Office for South-East Asia (OHCHR) said on Friday that the Act gave Najib sweeping security powers and could restrict civil liberties.

Under the Act, the OHCR points out, a security area is defined as being a location “seriously disturbed or threatened by any person, matter or thing which causes or is likely to cause serious harm to the people of Malaysia, or serious harm to the territories, economy, national key infrastructure of Malaysia or any other interest of Malaysia”.

The declaration of a security area is valid for up to six months, and can be renewed an infinite number of times.

Forces operating in a “security area” will be given sweeping powers, including the capability to arrest and search persons, enter and search premises, and seize property without a warrant.

They will be allowed to use force against persons, including force amounting to death, as they deem reasonable and necessary in the circumstances “to preserve national security”.

The Act grants immunity to members of security forces and personnel of other government entities for their acts in any declared security area.

“These provisions run counter to the requirement to investigate wrongdoing and hold institutions and their personnel accountable in the case of human rights violations,” said the OHCHR’s acting regional representative in Bangkok, Laurent Meillan. “We are gravely concerned that the immunity provisions in the Act may encourage human rights violations.”

Meillan expressed concern that the Act could also be used to impose unjust restrictions on freedom of opinion and expression and freedom of assembly. “We call on the government to revise the Act to bring it in line with international human rights norms and standards.

“Furthermore, we encourage the Government to allow for an open and transparent consultation process on the provisions in the Act with all relevant stakeholders.”

The NSC Act also decrees a ban against any action, suit, or proceedings being brought against the security council.

Pakatan Harapan said: “Legislators hailing from every single opposition party voted against the bill; civil society embarked on the #TakNakDiktator campaign to mobilise public pressure against the authorities; all three Bars of Malaysia – the Malaysian Bar, the Advocates’ Association of Sarawak, and the Sabah Law Association – jointly asserted this law as a ‘serious threat to our system of constitutional government’”.

“With the NSC Act safely within his grip, Najib will have absolute and unfettered powers to save himself from any political crisis.”

Pakatan Harapan said the request by the Conference of Rulers to review the Act’s controversial provisions must be honoured and the constitutional separation of military power from the office of the prime minister must be upheld.

Lawyers say NSC Act is ‘open to abuse’

When the Act was gazetted to come into force today, Lawyers for Liberty said they were “shocked and appalled” and called for the legislation to be suspended pending further consultation.

The grouping said very serious concerns had been raised not only by lawyers, but by civil society in general, elected representatives, and even the Conference of Rulers, which had called for certain provisions of the Act to be “refined”.

The government has denied that the NSC Act was ever intended for situations of emergency and says that the Agong’s power to declare a national emergency, granted under Article 150 of the federal constitution, remains intact. Lawyers say this is true in theory, but the NSC has emergency-like powers, so can bypass the constitution.

Lawyers for Liberty said: “If we were to draw a comparison between the now abolished provisions of Part III of the Special Provisions Relating To Security Areas of the Internal Security Act (ISA) 1960, and Part IV of the Declaration of Security Area of the NSC Act, they bear such a striking similarity that we can only deduce that the NSC Act was enacted to replace Part III of the ISA.”

The lawyers said the threshold for the declaration of a “security area” under the now abolished ISA was much higher than under the NSC Act. It required public security to be “seriously disturbed or threatened by any substantial body of persons to cause a substantial number of citizens to fear organised violence”.

By comparison, the threshold under the NSC Act seemed “astonishingly low and ambiguously worded, and thus open to abuse”, the lawyers said.

“Under the NSC Act, the prime minister has not only usurped the powers of the YDP Agong to declare ‘security areas’ that had previously been exercised under the ISA, he has also substantially broadened the scope of the special provisions relating to ‘security areas’ to cover instances that do not justify the involvement of the military or use of deadly force.”

The wording of the NSC Act is “wide-ranging and ambiguous”, Lawyers for Liberty says.

“It would seem that the prime minister may invoke the special provisions relating to ‘security areas’ to almost anything that is detrimental to his rule, including public protests and other events that do not involve a substantial number of people and organised violence.”

The lawyers called for substantial amendments to be made to the NSC Act, “so that national security is genuinely balanced with constitutional, democratic and human rights concerns, and institutional checks and balances”.

Pakatan Harapan, which brings together the Parti Keadilan Rakyat (People’s Justice Party or PKR), the Democratic Action Party (DAP) and the breakaway Islamic party Amanah, points out that the NSC has the power to issue directives to any government entity, including all ministries and agencies, the armed forces, and the Royal Malaysian Police.

“The Malaysian Constitution wisely separates the military chain of command from the prime minister’s control. Represented in the Armed Forces Council are the Yang di-Pertuan Agong as the Supreme Commander of the Armed Forces, and his fellow royals in the Conference of Rulers instead.”

In centralising military, policing, and emergency powers under the prime minister, the NSC Act “blurs the inviolable lines that separates the executive, legislative, and judiciary branches of government from each other”, Pakatan Harapan says.

“To stick true to the tenets of democracy, the NSC Act must be cold-storaged without delay.”

The NSC legislation has been described by former ambassador Dennis Ignatius (pictured left) as “the final step in the ‘Zimbabweization’ of Malaysia”.

The chief executive of the Institute for Democracy and Economic Affairs (IDEAS) think-tank, Wan Saiful Wan Jan, said when the legislation was gazetted: “The prime minister now possesses at his disposal a concentration and breadth of power which has no historical precedence in Malaysia. We are truly in uncharted waters.”

(The security council also includes the deputy prime minister.)

Pakatan Harapan’s presidential council consists of the PKR president, Wan Azizah Wan Ismail, the acting chairman of the DAP, Tan Kok Wai, and the president of Amanah, Mohamad Sabu.

Update 2/8/2106: Jailed opposition leader Anwar Ibrahim today filed an application in the High Court, through his lawyer N. Surendren, in a bid to halt the operation of the National Security Council Act. His legal action is being taken against the government of Malaysia and the NSC. Anwar says the Act is unconstitutional and should be nullified.

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